Electoral Seats Under the New Constitution

 

 

 Affirmative. Inclusive. Representative

 

Contents
Briefly

Governor of the County

The elected Administrative CEO of the County

Senator of the County

The elected law-maker at the Senate for the County

Women Representative of the County

Elected Law-maker at the National Assembly for the Women of the County

Member of the Constituency

Elected Law-maker at the National Assembly for the people of the Constituency.

Member of the County Assembly

Elected Law-maker at the County Assembly for the people of the Ward.

 Nominated Members

Nominated Law-makers via Political Party-lists to ensure affirmative representation of gender, minorities and special interests.

 

Introduction

 

While the related discussion on Kenya's Electoral System under the New Constitution revealed the people's determination to streamline the manner and conduct of elections in Kenya through a reformed electoral system, the discussion on political parties has highlighted the ideal environment under which the voter desires to see daily politics conducted. In both cases the people of Kenya, through the New Constitution have made the case for immediate changes in the political and electoral processes and systems that are transparent and inclusive; devoid of fraud, manipulation and ethnic mobilizations and other discriminatory evils. The next discussion hereafter on electoral seats, hopes to make the case that every Kenyan, irrespective of gender, race, creed, language, association, vocation, age, place of domicile, etc., will have a direct say on who gets elected at their local unit of devolution i.e in the County, and to the Presidency at the national level.

The Independent Electoral and Boundaries Commission IEBC, is the only body mandated by the Constitution of Kenya 2010, to delineate new electoral units and boundaries. That is to say, the geographical units of representation (or Electoral Seats) are mapped by the IEBC:

82. (1) Parliament shall enact legislation to provide for— (a) the delimitation by the Independent Electoral and Boundaries Commission of electoral units for election of members of the National Assembly and county assemblies;

 

 


 

 

Governor of the County

 

The New Constitution has devolved two out of the three arms of government - namely, executive and legislative authority. This devolution will be exercised at the County level. The obvious implication of this is that the citizens of every County get to elect local representatives to their county executive and legislative authorities to be known as the County Executive and County Assembly respectively. Chapter 11 - Devolved Government, Part 1 - Objects and Principals of Devolved Government, excerpts:

176. (1) There shall be a county government for each county, consisting of a county assembly and a county executive.

The County Executive is headed by an elected Governor (and a running-mate as Deputy), while the County Assembly is composed of elected Ward Representatives.

180. (1) The county governor shall be directly elected by the voters registered in the county .......

 

Member of the County Assembly

 

177. (1) A county assembly consists of— (a) members elected by the registered voters of the wards ........

 

President of the Republic of Kenya

 

Similarly, the citizens of the various Counties get to elect the President (and Deputy President as running-mate) to the National Executive, and their representatives to the national legislative authority known as Parliament. Chapter 9 - The Executive, Part 1 - Principals and Structures of the National Executive, excerpts:

130. (1) The national executive of the Republic comprises the President, the Deputy President and .......

136. (1) The President shall be elected by registered voters in a national election ........

The race for the (ultimate) seat of President is covered in its own link under the Presidential Electoral System Under the New Constitution

 

Member for the Constituency

 

And from Chapter 8 - The Legislature, Part 1 - Establishment and Role of Parliament, excerpts:

94. (1) The legislative authority of the Republic is ....... vested in and exercised by
Parliament.

93. (1) There is established a Parliament of Kenya, which shall consist of the National Assembly and the Senate.

Representation at the National Assembly is on two levels. The first level is the unit traditionally known as a Constituency and which will elect one Member to the Assembly. Excerpts from Part 2 - Composition and Membership of Parliament:

97. (1) The National Assembly consists of— (a) two hundred and ninety members, each elected by the registered voters of single member constituencies; (b) forty-seven women, each elected by the registered voters of the counties, each county constituting a single member constituency;

 

Women Representative (Member) for the County

 

The second level of representation is the County. It elects a Women Representative to the Assembly, as part of positive affirmative action. Excerpts from Part 2 - Composition and Membership of Parliament:

97. (1) The National Assembly consists of— (a) two hundred and ninety members, each elected by the registered voters of single member constituencies; (b) forty-seven women, each elected by the registered voters of the counties, each county constituting a single member constituency;

 

Senator for the County

 

Elected representation at the Senate is on only one level. Every County will elect one Member to the Senate who will be known as a Senator. 

98. (1) The Senate consists of— (a) forty-seven members each elected by the registered voters of the counties, each county constituting a single member constituency;

From the foregoing, electoral seats in Kenya were filled in two sequential steps in the general elections of 2013 as discussed hereafter. In the first step of Kenya's electoral system, 6 types of electoral seats were filled through direct election by voters on the polling day as shown:

 

Table 1. Direct Election on Polling Day

 

Electoral Seat
Institution
Please mark one
President of Kenya National Executive X
Governor of the County County Executive X
Senator for the County Senate X
Women Representative for the County National Assembly X
Member for the Constituency National Assembly X
Member for the County Ward County Assembly X

 

In the second step, political parties will nominate members on a formula that reflects their strengths in the various legislative assemblies as shown in the next sub-section.

For a detailed look at the 2013 election outcomes by area, candidates and the votes garnered by each, the reader is invited to visit the IEBC Elections Portal

 


 

 

Nominated Members

 

These representatives will not be directly elected by the people. They will be nominated by political parties represented in the respective legislative Assemblies. Their mandate will be to represent minorities and special interests. The part to be played by these nominated members cannot be overstated for the simple reason that given the integration (ethnic, social, cultural, etc) levels that have taken root in Kenya today, coupled with high levels of migrations in the last 100 years, significant minorities will be found in most, if not all Counties.

177. (1) A county assembly consists of— (c) the number of members of marginalised groups, including persons with disabilities and the youth, ........

Positive affirmative action for women is a dominant theme in the Constitution of Kenya 2010, to balance the political space that has historically been dominated by men:

177. (1) A county assembly consists of— (b) the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender;

97. (1) The National Assembly consists of— (c) twelve members nominated by parliamentary political parties according to their proportion of members of the National Assembly in accordance with Article 90, to represent special interests including the youth, persons with disabilities and workers .......

98. (1) The Senate consists of— (b) sixteen women members who shall be nominated by political parties according to their proportion of members of the Senate elected under clause (a) in accordance with Article 90; (c) two members, being one man and one woman, representing the youth; (d) two members, being one man and one woman, representing persons with disabilities; ........

 

Table 2. Nomination via Party Lists

 

Electoral Seat
Institution
Electoral Unit
Gender
Count
Nominated Senator Senate Women Female 16
Nominated Senator Senate Youth Both 2
Nominated Senator Senate Persons with Disabilities Both 2
Nominated Member for Constituencies National Assembly Youth, Persons with Disabilities, Workers Both 12
Nominated Member for the Wards County Assembly Marginalised Groups, Persons with Disabilities, Gender Both Top up count* 

 * Top-up count - so not more than two-thirds of the members of the Assembly are of the same gender.

From Table 2 above, there will be at least 18 women out of a total of 67 Senators in the Senate. This will represent just 26.7 percent - less than the required "........ no more than two-thirds of the membership of an elective body be of the same gender" Constitutional provision. The hope was (unless legislation is introduced on time before the 2013 General Elections), that some 5 Counties at the very least, will directly elect a woman Senator in the elections, to achieve the minimum requisite ratio of 44 men and 23 women in the Senate. However, the Supreme Courts opinion was sought on the matter and it (the Court) made a (majority) ruling that the said constitutional provision be realised progressively within two election cycles. 

The National Assembly on the other hand, will have 47 directly elected Women Representatives for the Counties. At present, women MPs make up just 10% of the membership in the 10th Parliament. If the same trend is maintained at the 2013 elections, then about 29 women will secure direct membership into the Assembly. Add that number to the 47 and the next Assembly is assured of at least 76 women Members. If that be the case, and gender parity is adopted in the nomination rules governing party lists (Table 2), then the proportion of women in the Assembly will be 82 (including the 6 nominated by party list) out of 249 or 33.0 %, just about adequate as provided for in the Constitution.

The New Constitution is silent on whether independent candidates who get elected will have any voting right in the determination of those to be nominated via party lists.

NB. Detailed discussions on the politics, the concept and the various forms of representation as provided under the Constitution of Kenya 2010 can be found here or within the menus under the Representation link on the main page of this website.

 

 


 

 

Summary

 

As we have seen, the 2013 elections differed in many ways from previous elections. The survey and discussions on the candidates who faced off in the General Elections for various electoral seats in every one of the 47 Counties, is covered under the respective Counties link. However, the race for the (ultimate) seat of President is covered in its own link under the Presidential Electoral System Under the New Constitution link.

 

 

References:

1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.

2. Political Parties Act No 11 of 2011. National Council for Law Reporting. The Attorney General.

3. Website of the IEBC. The Independent Electoral and Boundaries Commission.

4. 7. Majority Opinion in the matter of the principle of Gender Representation in the National Assembly and the Senate 2012 eKLR. National Council for Law Reporting. The Attorney General.

5. IEBC's Elections Portal. The Independent Electoral and Boundaries Commission. Accessed October 2013.

 

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